LORD BROUGHAMannounced to their Lordships that this Bill had now come back to their Lordships—a Bill which he declared to be of vast importance to the law, in the judicature, and to the mercantile community at large. As he was about to ask them to assent to all the alterations of the Commons, with the exception of two clauses, from which he must ask them to dissent, he would venture to intrude upon their attention with a statement on which he thought that the fate of this Bill for the present Session would materially depend. He hoped that the House of Commons would not refuse to accede to his proposition, but would meet him, as he was prepared to meet them, in a spirit of mutual accommodation. The Bill, which, as their Lordships were well aware, had passed unanimously in that House, had gone down five or six weeks ago to the other House of Parliament. That body, approving of its principle, had given it a second reading, and had referred the settlement of its details to a Select Committee. 1017 Unfortunately, on that Select Committee it was not found possible, from their numerous avocations, to place the most eminent Chancery lawyers who adorned the benches of the other House of Parliament. But on that Committee were some of the most eminent Members of the Common Law bar. The Attorney General had himself taken charge of the Bill, and the Committee could not have had an abler chairman (Mr. Spencer Walpole). The rest of the Committee had no particular concern with the bankruptcy law—they were mercantile men from Manchester, Liverpool, and the city of London; there were also some of the Members from the great trading towns of Yorkshire. The first objection which the Committee made to the Bill, related to the form of it. Now, he had borrowed the form of it from the French code, which was universally admired throughout Europe, and which, he thought, was the most suitable to all parties. The Committee, however, departed from his plan, recurred to ancient forms, and set their faces against all innovations. The bankruptcy code, as he had framed it, consisted of 378 articles, numbered in succession for the convenience of citation. The Committee struck out a considerable number of his "articles," and because they thought the word "article" a bad word, expunged it from the Bill, and substituted for it the word "sections." They also adopted Roman and not Arabic numerals; and the Bill had been sent back to them with an X for 10, and with a C for 100, an alteration no doubt very important and very praiseworthy, but for which he could see no reason whatsoever. The Bill, however, so mutilated, had come back to them, he would not say changed at nurse, but much altered in its external appearance. And all this was done to avoid innovation, although neither he nor any other lawyer had ever heard of the word "section." Then the Committee divided the whole Bill into chapters. It was divided into 29 chapters, all of which were headed by the formal words:—"Be it enacted "—which added something to the length of the Bill, but nothing to its real value. He did not object to this; but he merely wished to explain how the progeny of their Lordships had been altered by the fostering care of the other House. A want of the practical knowledge of the bankrupt law generally, and also of the working of that law, had caused the Committee to make great alterations in the Act, as 1018 he thought, much to its detriment. First of all, the examination clauses, to which the mercantile community attached much importance, had been left out of the Bill. All the provisions as to fraudulent and secret transfers of property had boon expunged, which would not have been the case, he would venture to say, had any of his learned Friends of the Chancery bar been members of the Committee. Those excellent persons would either have not struck the clauses out, or, if they had, would have discovered an efficient substitute for them. He spoke on that point from personal knowledge of the men, and also from personal communication with them on the point. Another alteration had been made in giving power to hear evidence in the Court of Appeal, upon the supposition that there was an intermediate court of appeal in which such evidence was taken. Now, that intermediate court of appeal had no existence. He had received, and would read to the House, two memorials from Manchester—and the last was from the Chamber of Commerce of that city, dated July 25, 1849—both stating that this Bill, in consequence of these erasures, was not worth having, and that the Bankruptcy Bill should be at once rejected in the hope of getting a better next Session. Now, though he could readily enough concur in the chagrin of these parties, he could not altogether coincide in their conclusions. He could not consent to reject the Amendments of the Commons; for such a rejection would involve the total destruction of the Bill. The merchants of London and the traders of Yorkshire agreed with the Bill, but lamented the changes made in it. They were of opinion, for several reasons with which he would not trouble their Lordships, that it was an important improvement on the present law, upon which future improvements might be engrafted in another Session; and such improvements he pledged himself to introduce early in the next Session. Clearly then, as practical men engaged in accomplishing a practical object, it was their duty to listen to the voice of London and Yorkshire, and not to that of Manchester and Liverpool. Nevertheless, he felt some surprise and great regret that the Select Committee did not take extraordinary precautions to call before them the Bankruptcy Commissioners. Mr. Holroyd, Mr. Goulburn, Mr. Fonblanque, and others, had been engaged for the last 18 or 20 years in bankruptcy; 1019 and yet not one of those learned personages had been called before the Committee. He (Lord Brougham) went to give his evidence before them; but he was a poor substitute for such high authority as theirs. He could not help mentioning another thing—that during the alteration of this Bill in the Select Committee, another Bill had been sent up to their Lordships which had been passed unanimously in all its stages in the Commons—which had been read a second time, and committed by their Lordships—and which was even now waiting for a third reading. Would their Lordships believe it?—the very clauses which had been rejected in the English Bankruptcy Consolidation Bill, had been inserted in the Irish Bankruptcy Bill, and passed without opposition. Their Lordships were, therefore, either going to provide two different codes of bankruptcy for the two countries on each side of the Channel; or, if they were not, and were determined to make the two Bills the same, they must reject all the clauses in the Bill of the Commons, as the Commons had rejected all the clauses in the Bill of the Lords. The House of Commons had spent, he believed, just two hours and ten minutes in going through the 278 clauses of this Bill, allotting, on the average, to each clause just twenty-five seconds of time, which, he was informed, was a very large average for that House at this period of the Session. The result of the debate—if such it might be called—which took place upon the Bill in another place, did not, in his opinion, necessarily prove that they were right, and their Lordships were wrong. He must now say one word on the examination of the witnesses who appeared before the Select Committee. He confessed that he was alarmed when he heard that the House of Commons had sent his digest of the criminal law to a Select Committee for examination. He immediately said to himself—"What will now become of my digest of the criminal law, on which the first lawyers of the day have been engaged for many years, at great public cost? There are in it 1,200 articles, but in the Bankruptcy code there are not 400. If the House of Commons can't give faith and credit to the labours of select commissioners, and of learned professional men—if they will weigh every article word by word, and sentence by sentence, the sooner the Criminal Law Commission is brought to an end the better, for no digest can be passed though either House of Parliament." 1020 The fact was, that matters of such a nature must be disposed of in confidence; and such was the doctrine laid down by the manly mind of Lord Lyndhurst, when he was Lord Chancellor, and such was the doctrine upon which he acted with regard to some legal reforms which he (Lord Brougham) had proposed. Well, the Select Committee examined witnesses, and among others, a learned Judge of the Court of Chancery. They asked him—" Have you considered the Bill before the Committee as to the administration and consolidation of the law of bankruptcy? "And again—" Have you anything further to propose? "What was the answer which the learned Judge gave? It was this—" That is a very large subject. I will answer you any question you may choose to ask, but I cannot enter at once into a treatise on bankruptcy. Whilst the Bill was before the House of Lords, not thinking it likely that I should be examined, I examined it very little; and it was not till it left the Lords"—or, in other words, till it became a Bill under the unanimous sanction of the House—" that I gave more attention to it; but it is a pamphlet of more than a hundred pages." He had a profound respect for the judicial bench, and more especially so whilst those who wear the ermine learn and practise the first lesson of practical wisdom for a judicial officer, namely, that just in proportion as a Judge, by his rank and dignity, is well adapted for defensive operations, he is ill adapted by his rank and dignity for offensive operations. He should respect a Judge in proportion as he respected himself, by showing that he did not mistake obscure and mysterious sentences for profound judgment, smart decisions for easy judicial sagacity, and pert flippancy for party wit. So long as the Judge allowed him (Lord Brougham) to respect him, the Judge would command his respect as his undoubted due. He (Lord Brougham) had no occasion to defend the House of Lords, or this Bill, the production of its wisdom, which had been decorously called "a pamphlet of more than a hundred pages." Some persons found it easier to jibe than to read and comprehend, and of those persons he would not say that this witness was not one. Those who hated innovation in the form of an enactment, would, in this Bill, not find that ground of complaint; at least, they would only discover it to a limited extent, for they would find that the whole of the repealing part of the Bill was 1021 comprised in a single sentence—he alluded to that which repealed all the former Acts. With respect, however, to the schedules, he had a very different remark to make, for he found that the Commons had made numerous exceptions which were likely to create very great confusion. There was also a slight omission respecting all the salaries of all the Judges. There was, moreover, another slight omission, the omission of the word "not" in a most important place. Then, the power of making-rules and regulations, with the consent of the Great Seal, had been placed in the hands of eight commissioners, including the senior commissioner. But, according to the plan now proposed, any eight commissioners might in the country, without consulting any of the metropolitan commissioners, make any rules and regulations they thought proper; and those rules and regulations would be of sufficient authority to govern the proceedings of all the commissioners, not only throughout the country, but in the metropolis likewise. He had now only to add, that he proposed to make two or three alterations in the Amendments sent up to them from the House of Commons. Those alterations would relate to executions, and to fraudulent and secret transfers of property. This, however, should not prevent his proposing to the House any other measure on the subject in the course of the next Session of Parliament. It only remained for him to move, that their Lordships do agree to all the Amendments made by the House of Commons, with the exception of the omission of the first Clause, and in the schedule with the insertion of the word printed in italics.
LORD CAMPBELLhad no objection to this Motion; but he hoped that when his noble and learned Friend came more minutely to examine the Bill, he would find that it was not open to so many objections as it seemed liable to when he first addressed the House on the subject. He assured their Lordships that the Attorney General, and his hon. and learned Friend the Member for Midhurst, had given the measure their most careful attention; the Committee comprehended many men of great eminence in the profession of the law, and it was evident that they had taken the greatest possible pains in revising and perfecting the Bill.
LORD BROUGHAMdeclared that he did not mean to cast the least slight upon his hon. and learned friend, Mr. Walpole, 1022 for whom he entertained the highest possible respect.
§ LORD WHARNCLIFFEhoped that some Bill would be introduced next Session for the purpose of completing the measure; but for the present, his Lordship was understood to say that the Bill now before their Lordships had better be passed as it was.
§ LORD REDESDALEwished to take that opportunity of presenting a petition from a gentleman of the name of Church, who held the office of Clerk of the Enrolments in the Court of Bankruptcy. The House of Commons had not abolished the office; for if they had, he might, perhaps, in the regular way, have claimed compensation; but they had abolished the practice of enrolment, by which means he had been deprived of all his fees. It was on these grounds that he hoped his claims would not be overlooked.
LORD BROUGHAMadmitted that it was a case of great hardship; but the office was unnecessary, and the House of Lords had no power of giving compensation. With respect to the Bill before them, they must send a message to the Commons, intimating that they had agreed to the Amendments with Amendments.
§ Commons' Amendments considered and agreed to with Amendments, and Bill sent to the Commons.